RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 21a0188p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`
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`DANNY HILL,
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`
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`v.
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`Petitioner-Appellant,
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`TIMOTHY SHOOP, Warden,
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`Respondent-Appellee.
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`┐
`│
`│
`>
`│
`│
`│
`│
`┘
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`
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`Nos. 99-4317/14-3718
`
`On Petition for Rehearing En Banc
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`United States District Court for the Northern District of Ohio at Youngstown.
`No. 4:96-cv-00795—Paul R. Matia and John R. Adams, District Judges.
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`
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`Argued En Banc: December 2, 2020
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`Decided and Filed: August 20, 2021
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`Before: SUTTON, Chief Circuit Judge; MERRITT, MOORE, COLE, CLAY,
`GIBBONS, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR,
`BUSH, LARSEN, NALBANDIAN, and READLER, Circuit Judges.
`
`_________________
`
`COUNSEL
`
`ARGUED EN BANC: Vicki Ruth Adams Werneke, FEDERAL PUBLIC DEFENDER’S
`OFFICE, Cleveland, Ohio, for Appellant. Benjamin M. Flowers, OFFICE OF THE OHIO
`ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON SUPPLEMENTAL BRIEF:
`Vicki Ruth Adams Werneke, Lori B. Riga, FEDERAL PUBLIC DEFENDER’S OFFICE,
`Cleveland, Ohio, for Appellant. Benjamin M. Flowers, Stephen E. Maher, Michael J.
`Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
`Sarah K. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville,
`Tennessee, Kevin J. Truitt, DISABILITY RIGHTS OHIO, Columbus, Ohio, for Amici Curiae.
`
`
`
`
`
`
`Pursuant to 6 Cir. I.O.P. 35(c), Composition of the En Banc Court, Judge Merritt, senior judge of the court
`who sat on the original panel in this case, participated in this decision. Judge Murphy recused himself from
`participation in this decision.
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`
`
`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 2
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`GIBBBONS, J., delivered the opinion of the court in which SUTTON, C.J., and
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`GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, and READLER, JJ.,
`joined. MOORE, J. (pp. 29–63), delivered a separate dissenting opinion, in which MERRITT,
`COLE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined. An excerpt of the panel’s 2018
`opinion, see 881 F.3d 483 (6th Cir. 2018), is appended, (app. 64–81).
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`_________________
`
`OPINION
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`_________________
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`JULIA SMITH GIBBONS, Circuit Judge. In this death penalty habeas case, appellant
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`Danny Hill seeks collateral review of his conviction for the murder of Raymond Fife, a twelve-
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`year-old boy. The case has been to the Supreme Court once and before panels of this court
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`twice. The core issue in the underlying state case was whether Hill was ineligible for the death
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`penalty because he is intellectually disabled, a question that became pertinent after the Supreme
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`Court’s 2002 decision in Atkins v. Virginia. 536 U.S. 304 (2002). Before us, the issues are
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`whether, under governing AEDPA review principles, the state court decision “was contrary to, or
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`involved an unreasonable application of, clearly established Federal law, as determined by the
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`Supreme Court of the United States” or was “based on an unreasonable determination of the
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`facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We
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`conclude that the state court’s resolution of the issue does not meet either of the criteria that
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`would permit a federal court to disturb a state conviction. Thus, we affirm the district court’s
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`denial of Hill’s petition for a writ of habeas corpus.
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`I.
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`In 1986, a three-judge Ohio state court panel convicted Hill of the murder of Raymond
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`Fife, a twelve-year-old boy. State v. Hill, 894 N.E.2d 108, 111 (Ohio Ct. App. 2008). Hill
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`abused and injured Fife in multiple horrible ways. Id. Fife was found by his father and died two
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`days later. Id. The same panel sentenced Hill to death. Id. During the mitigation stage of Hill’s
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`sentencing, the court heard testimony from three medical professionals about whether Hill was
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`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 3
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`intellectually disabled.1 One found that Hill’s intelligence level “fluctuat[ed] between mild
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`retarded and borderline intellectual functioning,” another that Hill fell “in the mild range of
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`mental retardation,” and the last that Hill’s “upper level cortical functioning indicated very poor
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`efficiency.” Id. at 112 (quoting State v. Hill, 595 N.E.2d 884, 901 (Ohio 1992)).
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`After considering this evidence, the Ohio state court found that the record evidence suggested
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`that Hill had a “diminished mental capacity” and that testimony suggested he would be
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`“categorized as mildly to moderately retarded.” Id. (quoting State v. Hill, Nos. 3720, 3745, 1989
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`WL 142761, at *32 (Ohio Ct. App. Nov. 27, 1989)). The Ohio Court of Appeals and Ohio
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`Supreme Court both affirmed the trial court’s imposition of the death penalty because they found
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`that the aggravating circumstances outweighed any mitigating factors, including Hill’s
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`diminished intellectual capacity. Id.
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`
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`In 2002, the Supreme Court decided Atkins v. Virginia, which held that it was
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`unconstitutional to execute the intellectually disabled. 536 U.S. 304 (2002). The Atkins Court
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`provided some discussion of the clinical definitions of intellectual disability, but it left it to the
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`states to “develop[] appropriate ways to enforce the constitutional restriction upon [their]
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`execution of sentences.” Id. at 317 (second alteration in original) (quoting Ford v. Wainwright,
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`477 U.S. 399, 416–17 (1986)). In State v. Lott, the Ohio Supreme Court articulated a three-part
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`test for establishing intellectual disability based on Atkins: “(1) significantly subaverage
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`intellectual functioning, (2) significant limitations in two or more adaptive skills, such as
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`communication, self-care, and self-direction, and (3) onset before the age of 18.” 779 N.E.2d
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`1011, 1014 (Ohio 2002), overruled by State v. Ford, 140 N.E.3d 616 (Ohio 2019).
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`In response to Atkins, Hill filed a petition for state post-conviction relief in 2003. State v.
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`Hill, 894 N.E.2d at 113. The trial court held an evidentiary hearing, and Hill, the prosecution,
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`and the court each chose a medical expert to evaluate Hill’s intellectual capabilities. Id. Hill
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`retained Dr. David Hammer, a professor and director of psychology services at the Ohio State
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`University; the prosecution hired Dr. Gregory Olley, a professor and director of the Center for
`
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`1At the time, the condition was referred to as “mental retardation.” While some of the past decisions and
`material we cite use that outdated terminology, the preferred term in the current lexicon is “intellectual disability.”
`See Hall v. Florida, 572 U.S. 701, 704 (2014).
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`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 4
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`the Study of Development and Learning at the University of North Carolina at Chapel Hill; and
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`the court appointed Dr. Nancy Huntsman, a forensic psychologist who worked at the Court
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`Psychiatric Clinic in Cleveland, Ohio. Id. The Ohio Court of Appeals, in reviewing Hill’s
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`Atkins claim, described the trial court proceedings as follows:
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`In April 2004, Drs. Olley, Hammer, and Huntsman evaluated Hill at the
`Mansfield Correctional Institution for the purposes of preparing for the Atkins
`hearing. At this time, Hill was administered the Wechsler Adult Intelligence
`Scale (“WAIS–III”) IQ test, the Test of Mental Malingering, the Street Survival
`Skills Questionnaire, and the Woodcock–Johnson–III. The doctors concurred that
`Hill was either “faking bad” and/or malingering in the performance of these tests.
`As a result, the full scale IQ score of 58 obtained on this occasion was deemed
`unreliable, and no psychometric assessment of Hill’s current adaptive functioning
`was possible. Thus, the doctors were forced to rely on collateral sources in
`reaching their conclusions, such as Hill’s school records containing evaluations of
`his intellectual functioning, evaluations performed at the time of Hill’s sentencing
`and while Hill was on death row, institutional records from the Southern Ohio
`Correctional Institution and the Mansfield Correctional Institution, interviews
`with Hill, corrections officers, and case workers, and prior court records and
`testimony.
`
`The evidentiary hearing on Hill’s Atkins petition was held on October 4 through 8
`and 26 through 29, 2004, and on March 23 through 24, 2005. Doctors Olley and
`Huntsman testified that in their opinion, Hill is not mentally retarded. Doctor
`Hammer concluded that Hill qualifies for a diagnosis of mild mental retardation.
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`Id. at 113–14.
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`
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`The trial court held that Hill was not intellectually disabled and rejected his Atkins claim.
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`Id. at 114. The Ohio Court of Appeals affirmed, finding that Hill failed to prove he suffered
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`from two or more significant limitations in adaptive skills that manifested before age 18. Id. at
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`126–27. The Ohio Supreme Court, with two justices dissenting, declined to hear Hill’s appeal.
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`State v. Hill, 912 N.E.2d 107 (Ohio 2009) (Table).
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`
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`Hill then filed a petition for a writ of habeas corpus, which the district court denied. The
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`district court concluded that Hill had not overcome the highly deferential standard of review
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`under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).2 Hill v.
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`2The district court was critical of the Ohio Court of Appeals opinion. Some of us agree with some of its
`observations. Here, however, we do not itemize the opinion’s possible flaws in order to focus attention on our
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`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 5
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`
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`Anderson, No. 4:96 CV 00795, 2014 WL 2890416, at *51 (N.D. Ohio June 25, 2014). The
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`district court explained that while reasonable minds may disagree with the state court’s
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`determination and weighing of the evidence, the state court’s “conclusion regarding Hill’s
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`adaptive behavior at the time he filed his Atkins claim was supported by sufficient credible
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`evidence and, most importantly, the opinions of two experts.” Id.
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`
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`Hill appealed, and a panel of judges on this court reversed the district court’s decision on
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`Hill’s Atkins claim. The panel found that “the state court judgment . . . amounted to an
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`unreasonable application of the standard articulated by the Supreme Court in Atkins and as later
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`explained by Hall and Moore.”3 Hill v. Anderson, 881 F.3d 483, 489 (6th Cir. 2018). In
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`addition to his Atkins claim, Hill raised four other issues on appeal: an ineffective assistance of
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`counsel claim related to his Atkins hearing, a Miranda claim, a claim of prosecutorial
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`misconduct, and a due process claim based on the trial court’s alleged failure to hold a pretrial
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`competency hearing. Id. at 487. The panel pretermitted Hill’s ineffective assistance of counsel
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`claim and affirmed the district court’s denial of the other three claims, which Hill has not
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`challenged. Id. The Warden filed a petition for rehearing en banc, which was denied. He then
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`filed a petition for a writ of certiorari, which the Supreme Court granted.
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`The Supreme Court vacated and remanded, finding that the panel’s “reliance on Moore
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`was plainly improper under § 2254(d)(1).” Shoop v. Hill, 139 S. Ct. 504, 505 (2019) (per
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`curiam). The Court explained that “habeas relief may be granted only if the state court’s
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`adjudication ‘resulted in a decision that was contrary to, or involved an unreasonable application
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`of,’ Supreme Court precedent that was ‘clearly established’ at the time of the adjudication.” Id.
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`at 506 (quoting 28 U.S.C. § 2254(d)(1)). Because Moore was decided after Hill’s state-court
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`proceedings, the Court found that the panel erred by relying on Moore when determining
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`whether habeas relief was warranted under § 2254(d)(1). Id. at 508–09. The Court ordered that
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`“[o]n remand, the [panel] should determine whether its conclusions can be sustained based
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`strictly on legal rules that were clearly established in the decisions of this Court at the relevant
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`modest review role: that of determining whether the Ohio Court of Appeals unreasonably concluded that Hill was
`not intellectually disabled.
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`3See Hall v. Florida, 572 U.S. 701 (2014); Moore v. Texas, 137 S. Ct. 1039 (2017).
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`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 6
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`
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`time.” Id. at 509. The Supreme Court did not directly comment on any other part of the panel’s
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`decision, including its analysis under § 2254(d)(2) or Hill’s other four claims for relief. See
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`generally id.
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` On remand, the panel again granted Hill relief on his Atkins claim. Hill v. Anderson, 960
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`F.3d 260, 265 (6th Cir. 2020) (per curiam). The panel also once again pretermitted Hill’s
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`ineffective assistance of counsel claim and affirmed the district court’s denial of Hill’s other
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`three claims, incorporating its prior opinion in full. Id. at 265, 283.
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`
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`The Warden filed a petition for rehearing en banc on Hill’s Atkins claim, arguing that the
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`panel erred under both § 2254(d)(1) and § 2254(d)(2). This court granted en banc review, which
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`vacated the prior panel decision. Because we conclude that Hill’s Atkins claim does not satisfy
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`the demanding AEDPA standard, we affirm the district court’s denial of habeas relief. In
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`addition to our discussion of his Atkins claim, we find that Hill’s ineffective assistance of counsel
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`claim fails on its merits. We also reinstate the panel’s prior discussion affirming the district
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`court’s denial of Hill’s remaining claims to the extent it is consistent with this opinion.
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`II.
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`Under 28 U.S.C. § 2254(d)(1), a federal court may grant a writ of habeas corpus if the
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`state court decision “was contrary to, or involved an unreasonable application of, clearly
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`established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
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`§ 2254(d)(1). A state court’s decision is an “unreasonable application” of clearly established
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`federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the
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`facts of a particular prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407–08 (2000). “The
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`‘unreasonable application’ clause requires the state court decision to be more than incorrect or
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`erroneous”—it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
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`Objective unreasonableness is a higher standard than clear error. See White v. Woodall, 572 U.S.
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`415, 419 (2014). To demonstrate that the state court’s decision was objectively unreasonable,
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`the petitioner “must show that the state court’s ruling on the claim being presented in federal
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`court was so lacking in justification that there was an error well understood and comprehended in
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`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 7
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`existing law beyond any possibility for fairminded disagreement.” Id. at 419–20 (quoting
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`Harrington v. Richter, 562 U.S. 86, 103 (2011)).
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`
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`A federal court may grant a writ under 28 U.S.C. § 2254(d)(2) if the state court
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`proceedings “resulted in a decision that was based on an unreasonable determination of the facts
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`in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under
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`AEDPA, the question for this court to answer “is not whether a federal court believes the state
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`court’s determination was incorrect but whether that determination was unreasonable—a
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`substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Furthermore,
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`“the petitioner must show that the resulting state court decision was ‘based on’ that unreasonable
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`determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). Factual findings made by the
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`state courts based on the trial record are entitled to a presumption of correctness that may be
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`rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d
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`358, 360–61 (6th Cir. 1998).
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`This “highly deferential standard” requires that determinations made in state court “be
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`given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting
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`Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). When applying AEDPA, this court
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`considers “the decision of ‘the last state court to issue a reasoned opinion on the issue[s]’ raised
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`in [the] habeas petition.” Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016) (first alteration in
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`original) (quoting Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006)). Here, that is the Ohio
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`Court of Appeals decision. See State v. Hill, 894 N.E.2d at 108.
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`III.
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`A.
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`1.
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`While Hill’s en banc supplemental brief only asserts a claim for relief under
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`§ 2254(d)(2), in his original appeal Hill also argued that he is entitled to relief under
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`§ 2254(d)(1). Specifically, Hill claimed that the state court’s decision to evaluate whether Hill
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`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 8
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`was intellectually disabled at the time of his Atkins hearing rather than at the time the crime was
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`committed was an unreasonable application of clearly established federal law.4
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`At the time of the Ohio Court of Appeals decision, the only clearly established Supreme
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`Court precedent was Atkins itself.5 Atkins held that the execution of intellectually disabled
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`individuals violated the Eighth Amendment, but it did not provide a “comprehensive definition
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`of ‘mental retardation’ for Eighth Amendment purposes.” Shoop, 139 S. Ct. at 507. Instead,
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`Atkins delegated to the states “the task of developing appropriate ways to enforce the
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`constitutional restriction.” Atkins, 536 U.S. at 317 (quoting Ford, 477 U.S. at 416). Atkins did
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`not, as the Warden appears to claim, relinquish all standard-making authority to the states.
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`Atkins set out several guideposts for the states’ discretion by relying heavily on clinical
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`definitions of intellectual disability and factors such as “subaverage intellectual functioning” and
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`“significant limitations in adaptive skills . . . that became manifest before age 18.” Atkins,
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`536 U.S. at 318.
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`Though Atkins took note of “standard definitions of mental retardation,” the Court “did
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`not definitively resolve how” those definitions “w[ere] to be evaluated but instead left [their]
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`application in the first instance to the States.” Shoop, 139 S. Ct. at 508; see Bobby v. Bies,
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`556 U.S. 825, 831 (2009) (explaining that Atkins “did not provide definitive procedural or
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`substantive guides for determining when a person who claims mental retardation will be so
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`4It is unclear whether Hill has waived this argument. In the district court, Hill argued that “[t]o the extent
`that the state procedures themselves used to render the factual findings of the mental retardation clinical components
`contributed to and fostered inaccurate and unreliable factfinding by the trial court, the procedures violated clearly
`established federal law.” DE 94, Petition, Page ID 148. Read in the light most favorable to Hill, Hill’s current
`argument that the Ohio Court of Appeals focused its inquiry on the incorrect time period may be construed as one of
`the state procedures that Hill claimed before the district court contributed to inaccurate and unreliable factual
`findings. Given the ambiguity, and because neither party raised the potential waiver issue, we will proceed under
`the assumption that Hill’s argument has not been waived.
`
`5The Warden and twelve states as amici urge us to take this opportunity to overrule a line of Sixth Circuit
`precedent which permits courts to rely on clearly established law from both the United States Supreme Court and
`state supreme courts when considering an Atkins claim under § 2254(d)(1). See CA 6 R. 369, Response Br., at 14;
`CA 6 R. 371, Amicus Br., at 6; see also Williams v. Mitchell, 792 F.3d 606, 612 (6th Cir. 2015) (“[I]n the Atkins
`context, ‘clearly established governing law’ refers to the Supreme Court decisions and controlling state law
`decisions applying Atkins.”) However, Hill does not attempt to rely on state court precedent to establish his
`§ 2254(d)(1) claim. See CA 6 R. 375, Reply Br., at 7 n.2 (“The amicus brief filed on behalf of various states . . .
`focuses solely on a 2254(d)(1) argument that petitioner does not raise.”). Because Hill does not present this issue to
`us, it is extraneous to this appeal, and we decline to resolve it here. See United States v. Asakevich, 810 F.3d 418,
`421 (6th Cir. 2016) (“The federal courts have no license to issue advisory opinions . . . .”).
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`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 9
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`impaired as to fall within Atkins’ compass” (internal quotations omitted) (alteration adopted)).
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`Therefore, Hill faces the difficult task of showing that the Ohio Court of Appeals applied the
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`highly general holding of Atkins in an objectively unreasonable way. Cf. Parker v. Matthews,
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`567 U.S. 37, 49 (2012) (finding no unreasonable application of the “highly generalized standard for
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`evaluating claims of prosecutorial misconduct”); Lockyer, 538 U.S. at 73, 76 (finding no
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`unreasonable application of clearly established federal law when the “precise contours” of the
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`constitutional standard at issue were “unclear” (internal quotations omitted)).
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`While it is possible for state courts to unreasonably apply Atkins, evaluating a defendant’s
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`intellectual abilities at a later date rather than at the time of the crime is not an unreasonable
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`application of Atkins. Atkins does not define the time period when the inquiry must be made.
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`Hill argues that because the Court in Atkins “list[ed] several common characteristics of those
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`with intellectual disability . . . it contemplated their diminished culpability” which is “a reference
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`to the time the crime was committed. Thus, any assessment of a criminal defendant’s intellectual
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`function must derive from that same moment in time.” CA 6 R. 295, Petition, at 50. Hill’s
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`interpretation of Atkins, however, is hardly the only reasonable interpretation. As this court has
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`previously explained, Atkins supports the conclusion that intellectual disability is not a transient
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`condition. See Williams, 792 F.3d at 619 (concluding that “if an individual is indeed presently
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`intellectually disabled, . . . the disability would have manifested itself before the individual
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`turned eighteen” and “past evidence of intellectual disability . . . is relevant to an analysis of an
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`individual’s present intellectual functioning” (emphasis omitted)); see also id. at 626 (Gibbons,
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`J., concurring) (“It is clear from the entire thrust of the Atkins decision—along with the medical
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`literature that it cites in support—that intellectual disability is a permanent condition.”); Heller v.
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`Doe, 509 U.S. 312, 323 (1993) (noting, in a different context, that intellectual disability “is a
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`permanent, relatively static condition” (citing S. Brakel et al., The Mentally Disabled and the
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`Law 37 (3d ed. 1985))). If intellectual disability is not a transient condition, then the outcome
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`should not change if the court evaluates a defendant’s abilities at the time of the crime or at the
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`time of a later Atkins hearing. Thus, we find Hill’s argument that Atkins requires evaluating a
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`defendant’s intellectual abilities at the time of the offense to be unpersuasive.
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`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 10
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`Here, the Ohio Court of Appeals did not question the trial court’s decision to evaluate
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`Hill’s intellectual abilities at the time of the Atkins proceedings rather than when the crime was
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`committed. Nevertheless, the Ohio court considered evidence of Hill’s past abilities including
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`Hill’s medical history, public school records, and prior standardized test results. State v. Hill,
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`894 N.E.2d at 123–24. The court also evaluated criteria mentioned in Atkins such as intellectual
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`functioning, adaptive skills, and the onset age of disability. We cannot say that the Ohio court’s
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`decision was objectively unreasonable given the discretion Atkins left to the states.
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`2.
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`Next, Hill argues that the Ohio Court of Appeals decision was an unreasonable
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`determination of the facts in light of the evidence presented in the state court proceedings, in
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`violation of 28 U.S.C. § 2254(d)(2).
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` Specifically, Hill claims that the state court
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`mischaracterized the record, improperly discounted historical evidence, and unreasonably
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`concluded that Hill failed to establish that his disability manifested before age 18. The Warden
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`argues that the state court’s decision was not unreasonable because the court relied on the
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`opinions of two experts and because the court properly evaluated the evidence in the record. We
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`conclude that the Ohio Court of Appeals decision was not based on an unreasonable
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`determination of the facts.
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`Under Ohio law at the time of Hill’s Atkins hearing, a defendant had to prove three
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`factors to establish that he was intellectually disabled: “(1) significantly subaverage intellectual
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`functioning, (2) significant limitations in two or more adaptive skills, . . . and (3) onset before the
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`age of 18.”6 Lott, 779 N.E.2d at 1014. While courts are to conduct an independent review of the
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`evidence presented, they “should rely on professional evaluations of [the defendant’s] mental
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`status, and consider expert testimony.” Id. at 1015. Both parties agree that Hill satisfied the first
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`factor, that he had significantly subaverage intellectual functioning. The Warden also admits
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`that any adaptive deficits that Hill does have arose before he turned 18. Thus, the only
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`remaining dispute is whether the Ohio Court of Appeals reasonably determined that Hill failed to
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`prove the second Lott factor—“significant limitations in two or more adaptive skills, such as
`
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`6Lott has since been overruled, see Ford, 140 N.E.3d at 654–55, but it was the controlling state law at the
`time of the Ohio Court of Appeals decision.
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`

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`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 11
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`
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`communication, self-care, and self-direction.” Lott, 779 N.E.2d at 1014; see also Hill v.
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`Anderson, 2014 WL 2890416, at *22.
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`As an initial matter, the Warden argues that the Ohio Court of Appeals opinion is per se
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`reasonable because two experts concluded that Hill did not have significant adaptive deficits.
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`CA 6 R. 369, Response Br., at 11–12, 17 (citing O’Neal v. Bagley, 743 F.3d 1010, 1023 (6th Cir.
`
`2013); Carter v. Bogan, 900 F.3d 754, 771 (6th Cir. 2018); Apelt v. Ryan, 878 F.3d 800, 837 (9th
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`Cir. 2017); Larry v. Branker, 552 F.3d 356, 370 (4th Cir. 2009)). None of the four cases cited by
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`the Warden, however, suggests such a per se rule. Instead, the court in each case based its
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`conclusion on the content of the expert testimony and overall evidence before it. See O’Neal,
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`743 F.3d at 1023 (“With expert testimony split, . . . we cannot say from this vantage that [the
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`state court decision to credit two experts over another] was unreasonable . . . .”); Carter,
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`900 F.3d at 771; Apelt, 878 F.3d at 837; Larry, 552 F.3d at 370. The Warden claims that
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`“[w]hen a credible expert conducts an analysis—and when the defendant failed to put on
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`evidence contradicting that analysis beyond reasonable debate—it is not unreasonable for the
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`trial court to rely on that expert testimony.” CA 6 R. 369, Response Br., at 17. But that
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`statement itself is inconsistent with a per se rule. A per se rule would eliminate the need to ask
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`whether the defendant “put on evidence contradicting [the] analysis [of the state’s experts]
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`beyond reasonable debate.” CA 6 R. 369, Response Br., at 17; cf. Rice v. Collins, 546 U.S. 333,
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`341–42 (2006). Accordingly, this court must consider whether, based on the evidence presented,
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`the Ohio Court of Appeals’s determination that Hill did not suffer from significant limitations in
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`two or more adaptive skills was unreasonable.
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`Our resolution of this case turns on the Ohio Court of Appeals consideration of the expert
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`testimony presented at the Atkins hearing. Nevertheless, we outline the Court of Appeals’s
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`analysis in some detail before turning to the expert opinions, following the order in which the
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`state appellate court considered various portions of the factual record.
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`

`

`Nos. 99-4317/14-3718
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`Hill v. Shoop
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`Page 12
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`
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`The Ohio Court of Appeals began its review of the record by analyzing the standardized
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`adaptive behavior tests performed on Hill at various stages of his life.7 State v. Hill, 894 N.E.2d
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`at 122. First, the court noted that the three experts assigned to evaluate Hill’s ability at the time
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`of the Atkins hearing—Drs. Hammer, Olley, and Huntsman—could not obtain “reliable
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`[standardized test] results . . . on account of Hill’s lack of effort.” Id. The court considered
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`standardized adaptive behavior tests Hill had completed in the past but concluded that they were
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`unreliable because the methods used had later been discredited. Id. at 122–23. A voluminous
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`6,000 page record contains reports from Hill’s teachers, school psychologists, medical experts,
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`and prison officials about Hill’s adaptive abilities. See Hill v. Anderson, 2014 WL 2890416, at
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`*24.
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`The Ohio Court of Appeals next separated this factual record into four categories of
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`largely anecdotal evidence: public school records, reports around the time of the trial for the
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`killing of Raymond Fife, records from Hill’s time in prison, and Hill’s appearances before the
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`trial court itself. State v. Hill, 894 N.E.2d at 124–25. After summarizing each category and
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`considering the expert opinions, the court found that Hill had not met the second Lott factor. Id.
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`at 126.
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`First, the Ohio Court of Appeals considered Hill’s school records. Id. at 124. In one
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`paragraph, the court stated:
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`Hill’s public school records amply demonstrate a history of academic
`underachievement and behavioral problems. Hill is often described as a lazy,
`manipulative, and sometimes violent youth. Although there are references to
`Hill’s being easily led or influenced by others, the trial court noted that much of
`Hill’s serious misconduct, including two rapes committed prior to Fife’s murder,
`occurred when he was acting alone. Hill knew how to write and was described by
`at least one of his special education teachers as “a bright, perceptive boy with
`high reasoning ability.”
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`Id.
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`7The Ohio Court of Appeals reviewed the trial court’s decision for abuse of discretion and stated that the
`trial court must be affirmed if its decision is supported by competent and credible evidence. State v. Hill,
`894 N.E.2d at 121.
`
`

`

`Nos. 99-4317/14-3718
`
`Hill v. Shoop
`
`Page 13
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`
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`This characterization of Hill’s school records represents a short summary of the records.
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`There are multiple accounts in Hill’s records of his lying, stealing, and struggling to interact
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`appropriately with his peers. See, e.g., DE 97, Supp. Appendix, Page 530 (“Lying needs to be
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`confronted.”); id. at Page 568 (“Danny often manipulates the truth to his own advantage.”); id. at
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`Page 584 (describing an incident where Hill stole money from teachers’ wallets); id. at Page 558
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`(listing one of Hill’s annual goals when he was twelve as “improve peer-group relations”). Hill’s
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`behavioral problems, however, do not necessarily correlate with an absence of intellectual
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`disability. See Atkins, 536 U.S. at 306 (“Because of their disabilities in areas of reasoning,
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`judgment, and control of their impulses . . . [intellectually disabled individuals] do not act with
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`the level of moral culpability that characterizes the most serious adult criminal conduct.”). Each
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`of the three experts who testified at Hill’s Atkins proceeding agreed that Hill’s behavioral
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`problems during childhood did not necessarily contradict a finding of significant adaptive
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`limitations. In addition to the accounts of behavioral problems, multiple evaluators also reported
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`that Hill attempted to follow instructions and behaved well, particularly when dealing with
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`adults. See, e.g., DE 97, Supp. Appendix, Page 513 (school psychologist reported that, when
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`given a test, Hill “did cooperate and accepted all tasks presented to him.”); id. at Page 524 (court
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`liaison officer describing Hill as a “personable black child who has good rapport with staff as
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`well as the other residents” in a group home where he was placed when he was sixteen); id. at
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`Page 568 (“Danny is a very affectionate child. He often expresses the desire to be hugged and
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`will often rest his head on the teachers shoulder.”).
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`Hill’s school records suggest that he struggled academically as